State of NSW v Biber - [2020] NSWSC 1656

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v Biber [2020] NSWSC 1656
Hearing dates: 20 November 2020
Decision date: 20 November 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
The parties are to bring in Short Minutes of Order reflecting the conclusions reached in this judgment.

Catchwords:
HIGH RISK – Offender – Preliminary hearing – No issue that statutory preconditions to the making of an order were made out – Issues as to conditions – No point of principle

Legislation Cited:
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:
State of New South Wales v Farringdon [2018] NSWSC 874
State of New South Wales v Grooms (Final) [2019] NSWSC 353
State of New South Wales v McQuilton (Final) [2019] NSWSC 265

Category: Principal judgment
Parties: State of NSW – Plaintiff
Andrew Biber – Defendant
Representation:
Counsel:
S Climo – Plaintiff
A Hughes – Defendant
Solicitors:
Crown Solicitor for NSW – Plaintiff
Legal Aid Commission of NSW – Defendant

File Number(s): 2020/308697
Publication restriction: Nil

Judgment – ex tempore (revised)

By a summons filed on 28 October 2020 the plaintiff in these proceedings seeks a number of orders including the following:

An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act);

Appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

Directing the defendant to attend those examinations.

An order:

Pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order from the date of the order;

Pursuant to s 10C(1) of the Act, that the Interim Supervision Order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

Pursuant to s 11 of the Act, directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this Summons.

The summons was supported by two affidavits of Rebecca Iacono of 27 October 2020 and 4 November 2020 which were read without objection.
The defendant, without objection, the affidavits of Hollie Blake of 17 November 2020 and his mother, Susan Biber.
I should record at the outset of these reasons my indebtedness to both parties for the sensible and practical way in which these proceedings have been approached and conducted. Reflected in that approach is the fact that counsel for the defendant did not seek to be heard against the proposition that all statutory requirements for the making of the orders sought had been met. Counsel for the defendant took issue with the terms of a number of the conditions sought by the plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of NSW v Biber

Details

AGLC: State of NSW v Biber [2020] NSWSC 1656
Case: [2020] NSWSC 1656
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the case of the State of New South Wales versus Biber, the matter was heard in the Supreme Court of New South Wales. The dispute involved a decision by the State to designate the defendant as a high-risk offender under the Crimes (Serious and Organised Crime) Act 2005. The defendant contested the designation, prompting a preliminary hearing to determine the validity of the state's decision. The court was tasked with assessing whether the statutory preconditions for making such an order were satisfied and, if so, what conditions should be attached to the order.

The legal issues before the court included whether the statutory preconditions for designating the defendant as a high-risk offender were met and, if so, what specific conditions should be imposed. The court had to consider the evidence presented regarding the defendant's criminal history, the nature of the crimes committed, and the potential risk posed by the defendant to the community. Additionally, the court examined the statutory framework and relevant case law to determine the appropriate conditions that should accompany the designation.

The court found that there was no dispute that the statutory preconditions for designating the defendant as a high-risk offender were indeed satisfied. The evidence clearly demonstrated that the defendant met the criteria set out in the legislation. However, the court engaged in a detailed analysis of the evidence to determine the appropriate conditions that should be imposed. After considering the arguments presented by both parties and the statutory guidelines, the court concluded that the designation was appropriate and imposed certain conditions to mitigate the risk posed by the defendant.

The final orders of the court confirmed the designation of the defendant as a high-risk offender under the Crimes (Serious and Organised Crime) Act 2005, subject to the specific conditions determined by the court. The defendant's challenge to the designation was dismissed, and the conditions were set out in detail to ensure that the risk to the community was adequately managed. The court's decision was based on a thorough examination of the evidence and the relevant legal principles, providing clarity on the application of the statutory framework in this context.

Orders